Chapter I: the Legal Concept of Land

Carly Peddle

CHAPTER I: THE LEGAL

DEFINITIONS......

CHAPTER I: THE LEGAL CONCEPT OF LAND

CONCEPT OF LAND

THE RELEVANCE OF ENGLISH LAW

CUJUS EST SOLUM EJUS USQUE AD COELUM ET AD INFEROS

1. Ad Coelum

Kelsen v Imperial Tobacco Co, [1957]

Bernstein (Lord of Leigh) v Skyviews (1977)

Land Title Act (1-16)

Strata Property Act(1-18) – owner may subdivide airspace or land, each owning each individual title

FIXTURES AND CHATTELS

Re Davis (1954)

Zellstoff Celgar Ltd v BC (2014)*Controlling authority

CMIC Mortgage Investment Corp v Rodriguez (2010)

WATER

RIPARIAN RIGHTS

Water Act 1996

Water Sustainability Act

Johnson v Anderson (1937)

Schllinger v H Williamson Blacktop & Landscaping Ltd (1977)

Steadman v Erickson Gold Mining Corp (1989)

ACCRETION & EROSION

Southern Centre of Theosophy Inc v South Australia

SUPPORT

Gillies v Bortoluzzi (1953)

Rytter v Schmitz (1974)

CHAPTER III: ABORIGINAL TITLE

ABORIGINAL RIGHTS:

ABORIGINAL LANDS:

Delgamuukw v BC (1997) SCC

Mitchell v MNR (2001) SCC

R v Marshall, R v Bernard (2005) SCC

Tsilhqot’in (2014) SCC

CHAPTER IV: ACQUISITIONS OF INTERESTS IN LAND

1. CROWN GRANT

2. INTER-VIVOS TRANSFER

The Contract

The Transfer

Ross v Ross (1977)

2. Inter-Vivos gift

Zwicker v Dorey (1975) (Pre-Torrens)

Deathbed Gifts (Donatio Mortis Causa)

MacLeod v Montgomery (1980)Torrens

Transfers to Volunteers/ Trusts

3. WILL OR INTESTACY

Wills, Estates and Succession Act (WESA) (2009)

4. PROPRIETARY ESTOPPEL

Clarke v Johnson (2014)

REGISTRATION OF TITLE: AN OVERVIEW

Dispositions (realty or personalty):

Limits of Land-use:

Corporeal v Incorporeal Interests

The Trust “To A in trust for B” settlor ---- disposal ------>trustee------for the benefit of ------>beneficiary

Freedom of Alienation

SYSTEMS OF REGISTRATION:

R v Kessler (1961)

Skeetchestn Indian Band v British Columbia (2000)

LEGAL FEE SIMPLE

CHARGES

MORTGAGES

LEASES

CAVEATS

CERTIFICATE OF PENDING LITIGATION

JUDGMENTS

THE ASSURANCE FUND

McCaig v Reys (1978) BCCA

Royal Bank of Canada v British Columbia (AG) (1979) BCSC

Gordon v Hipwell

REGISTRATION

FEE SIMPLE

PRINCIPLE OF INDEFEASIBILITY

Creelman v Hudson Bay Insurance Co (1920)

ADVERSE POSSESSION

STATUTORY EXCEPTIONS TO INDEFEASIBILITY

FRAUD

Gill v Bucholtz (2009) BCCA

McCaig v Reys

Hudson’s Bay Co v Kearns and Rowling

Vancouver City Savings Credit Union v Serving for Success Consulting Ltd (2011) BCSC

Greveling v Grevling

Saville Row Properties (1969) BCSC

IN PERSONAM CLAIMS

Pacific Savings and Mortgage Corp v Can-Corp Development (1982) BCCA

McRae v McRae Estate

REGISTRATION: CHARGES

Dukart v Surrey (1978) SCC

Credit Foncier (1963) BCCA

Canadian Commercial Bank v Island Reality Investments Ltd (1988) BCCA

FAILURE TO REGISTER

Sorenson v Youngequitable interest

Yeulet v Matthews

PROHIBITED TRANSFERS

International Paper Industries v Top Line Industries

APPLICATION TO REGISTER

Rutland v Romilly (1958)

Breskvar v Wall (1971)

THE FEE SIMPLE

REPUGNANCY

RE: Walker

RE Shamas

Blackburn v McCaullum

THE LIFE ESTATE

RIGHTS OF A LIFE TENANT

Vane v Lord Barnard (1716)

CO-OWNERSHIP

CONCEPT OF LAND

-Property= rights in things

-Real Property

Surface/land rights, air rights, mineral rights
Corporeal right  tangible
Incorporeal right  intangible (ex. easement – right of use)
Fixtures

-Personal Property (Personalty, movables, intangible or tangible personal; chattels)

-Law and Equity Act

s.2 – Receive laws of England in BC

-Surveying required in BC (LTA s.58) Horizontal and vertical plane

-Registrar can also accept a meters and bounds description without a plan (s.99)

-Indefeasible title is subject to the right of a person to show that land is wrongly described (LTA s.23)

-No obligation on lawyers to investigate whether the plan & boundaries of land are correct (Winrob)

-Boundaries can be changed by accretion or erosion (must be then registered on plan)

-Definable, identifiable, transferable, valuable, permanent ands stable

-Torrens system: 2-dimension, surface based system. In Land Title Office, titles are represented as 2-dimensional cadastral overlays.

NUISANCE / TRESPASS
DEFINE: / Interference with use or enjoyment of property (that doesn’t take place on your property) / Enters property deliberately without consent of owner; violates the right of possession
P must prove they deserve compensation
Less serious / Damages assumed (monetary compensation)
More serious
WHERE: / Intrusion above the owned airspace or outside property line / Intrusion within owned airspace (above surface)
TYPES: / Encroachment
Property Law Act
s.36 (1) owner = interest, right to land
(2) if there is an encroachment, or fence improperly located fence or building, court may:
(a)Easement + compensation (right of way/occupation)
(b) Vest title + compensation
(c)Mandatory injunction (Kelsen money is not a substitute)
 Expands Shelfer(only for building or fences)
Equitable Remedies: Legal Remedies:
1.Equitable damages Damages *Now merged
2.Specific performance
3. Injunctions
Dependent on the behaviour of both the P & D (disentitlement)

THE RELEVANCE OF ENGLISH LAW

-Colonial Laws Validity Act  gave validity to legislation passed by logical legislative assemblies November 19, 1858, in BC's case)

Law and Equity Act, s.2
Received English Law into BC, as of November 19, 1858, "so far as they are not from local circumstances inapplicable", in which case "laws must be held to be modified and altered".

-Chancery Amendment Act 1858 “Lord Cairns Act”

Equitable Damages
This act allows Courts to decide damages to the party injured in addition to or in substitution for an injunction, or specific performance
This also made it possible to assess future damages

-Statute of Quia Emptores, 1290

Allowed sale and purchase of land

-Tenures Abolition Act, 1660

Shifted away from feudalism

-Statute of Uses, 1535

Executed the first use

-All received into BC law in 1858 and form the foundation of property law. The BC Land Title Act adopted the Torrens system in the 1870s.

CUJUS EST SOLUM EJUS USQUE AD COELUM ET AD INFEROS

Who owns the soil, owns up to the heavens, and downward to hell

1. Ad Coelum

Kelsen v Imperial Tobacco Co, [1957]

Facts: P was lessee of shop with flat roof (never used by P); D owned adjacent building had signed fixed flush to wall (4 inches), wanted to put up new sign, P approved. Sign was 8 inches from wall. P gave D notice to remove, then told them it could stay. Formal letter to remove sign. P sued for trespass on his airspace claimed a mandatory injunction for removal.

Issue: Is an invasion of airspace a trespass?

Decision: Verdict for P. Injunction to remove.

Reasons: Shelfer v City of London– when P’s legal rights are invaded prima face entitled to injunction (unless P has disentitleddamages).

Rule for damages instead of injunction: (1) Injury to P’s legal rights is small (yes) (2) Capable of being estimated in money (yes) (3) Adequately compensated monetarily (In this case  damages would be nominal, not adequate compensation) (4) Oppressive to D to grant injunction(Yes)

Most cases injunction not granted accidental invasion

In an instance where a case for an injunction made out  if P disentitled himself, court can award damages instead

Bad behavior by D

Just because damage is nominal doesn’t mean injunction shouldn’t be granted

Still valid  in guiding the courts deciding equitable damages for an injunction/specific performance but overtaken as far as fences/buildings in s.36

Ratio: Invasion of airspace above property  trespass. Damages can be awarded instead of an injunction (conduct of parties, how oppressive the injunction is)

Bernstein (Lord of Leigh) v Skyviews (1977)

Facts: D take and sell aerial photos to property owners. Took photo of P’s house. Offered to sell him photo. P wrote to complain (invasion of privacyhandover/destroy negatives). D did not receive letter, answered by someone else (sell negatives). P wrote: trespassed on airspace, invaded privacy, give negatives/prints, never do it again, apologize. No answer.

Issue: Do property owners also own unlimited airspace above the property? Right to exclude entry?

Decisions: Verdict for D.

Reasons: Rights to airspace more founded in nuisance. P relies on Kelsen to assert trespass. Absurd connotations if ownership extends to unlimited height. Balance rights of owner with general public.

Ratio: A property owner has legal rights from the ground to the height at which ordinary/use/enjoyment of that land. Above that: same rights as public Limited Kelsen.

Sheppard thinks this is vague.

Mineral rights are reserved to the Crown. BERNSTEIN principle applies downward as well as upward - ownership rights only extend downwards as necessary for "ordinary use and enjoyment” BUT some case-law that says you own to centre of earth.

Land Title Act (1-16)

s.138 – recognizes airspace parcels (volumetric, geodetic elevation – corresponds to curvature of the earth, airspace plan (how space is divided, can be multiple parcels within a plan)

s.139 – title to airspace recognized

s.140 – easements/restrictive covenants not implied (1) grant not airspace does not transfer an easement; (2) above upper, below lower remain in grantor

s.141

(1) can create airspace plan (geodetic  complying with curve of the earth) with indefeasible title
(2) can sell/mortgage/lease/grant interest in property
(3) can be sub-divided (Strata Property Act)

s.142(3) – if title is vested in municipality  can create airspace parcels

Skywalks above street, power lines, billboards, sky-train

Strata Property Act(1-18) – owner may subdivide airspace or land, each owning each individual title

-Title: Strata owner’s title includes both the condo & part interest in the common area. No separate title for the land on which the condo building sits. Registered in LTO (physical dimensions, jointly owned facilities, financial contributions from each owner for common expenses)

-Can rent/sell/mortgage etc.

-Each strata lot owner gets a series of rights (access, support, services)

-Common assets: chattels

-Monthly management fee + contingency fund (emergency/infrequent expenses)

-Creates government body (Strata Corporation)

-Corporation made up of all owners, some elected to council

-Changes in appearance or uses to common property need:

¾ vote (of those in attendance) at an annual or general meeting (s.71)

Reasonable grounds to believe that immediate change is necessary to ensure safety or prevent loss or damage s.71(a) and (b)

-Non major or immediate changes require 51 of majority at annual meeting

-Bare land strata plan (s.1) – subdivision on a horizontal plane

-the boundaries of the strata lots are defined on a horizontal plane by a reference to survey markers

-Building strata plan (s.68) – subdivision on a vertical plane

-Disputes: settlement/arbitration/litigation/resolution (2014 Civil Resolution Tribunal Actwill provide dispute resolution w/o court informal/faster)

s.66 – proportionally owned

s.67 – property tax  individual unit valued + common property/assets divided amongst owners

s.68 – own to center of the walls

s.69 – implied easements - support walls, passage of water, sewage, drainage, gas, oil, electricity, garbage, heating, telephone, radio, by pipes, wires, cables, chutes for use by strata lot

NOT registered on title

(1)(a) easements on hallways, elevators

-s.70(1) – may remove all or part of a wall with prior written approval of the strata corporation

-s.72(1) corporation responsible for repair/maintenance of common assets (2) can charge unit with repair and maintenance that they have the right to use (ex. parking spaces)

Requirements of Strata plan:

-S.244(1) Strata plan must:

(a) show the boundaries of the land included in the strata plan and show the location of the buildings
(b) contain a description sufficient to identify the title to the land, including plan
(c) show the boundaries of the strata lots, distinguished with numbers or letters (consecutive order)
(d) show the area in square meters of each strata lot
(e) comply with rules of s.75 of Land Surveyors Act
(g) be signed by (i) the person applying to deposit the plan under s.240 (ii) each holder of a registered charge on all or part of the land included in the strata plan
(h) be endorsed by a approving officer

-(2) Parking stalls, garage areas, storage areas, and similar areas or spaces intended to be used in conjunction with a residential strata lot must not be designated as separate lots, must be included as part of a lot or as part of common property

FIXTURES AND CHATTELS

“land"includes any interest in land, including any right, title or estate in it of any tenure, with all buildings and houses, unless there are words to exclude buildings and houses, or to restrict the meaning (Interpretation Act)

Chattels = tangible, moveable personal property

Fixtures = chattels attached to the land or buildings, real property

-Common law rule: transfer of interest in land assumes includes all fixtures, excludes chattels

- “Once a fixture is a fixture, it stays that way” (Rodriguez) – except Trade (Stack v Eaton)

Re Davis (1954)

Facts: A wife survived her husband and had claims against his real estate through her “dower”. 6 bowling alleys installed in building before husband purchased building. Installed using bolts, raised 6 inches above floor, affixed without much permanency could be dismantled/moved easily.

Issues: Are the bowling alleys chattels or fixtures?

Decision: Bowling alleys chattels. Value deducted from value of dower (not part of real estate)

Reasons: Mild affixation/not permanent, not affixed for better use of land, for purpose of being portable

Ratio:Chattel v fixture test, to factors:

Method and degree of affixation/annexation
Permanent or temporary?
Easily removal or serious damage or destruction?
Object and purpose of affixation/annexation (PRIMARY CONSIDERATION, Stack principle 1)
as supported by the objective facts (method/degree)
“better use”: to improve freehold or to enjoy the item?
raising value/usefulness of land & slightly affixed  fixture
improvement of chattel  chattel
if this object & affixed  chattel
Objective test (vs. subjective)

Zellstoff Celgar Ltd v BC (2014)*Controlling authority

Facts: P appealing. P disputing property transfer tax for mill (286k v 4.5mil); constructed in 60s, equipment installed in 90s. Almost every item fixed, could be dismantled & removed. Entire plant could not be relocated as a unit. Removal of large machinery considerable expense (could be non-viable).

Issues: Should use of land be considered when determining chattel v fixture? What is the “better use” test?

Decisions: Machinery & equipment  fixtures (degree: substantial, object: better use of land as mill)

Reasons: Equipment intended to remain for rest of its useful lifetime

Stack v Eaton

Attached only by own weight (degree) chattels, unless shown they were meant to be part of land (purpose)
Affixed to land slightly (degree) fixtures, unless intended to be chattels (purpose)
Degree and purpose of affixation (circumstances) can alter the prima facie character in 1 or 2 (purpose is primary)  Rebuts factor 1 or 2
The intention of the person is only relevant to the extent it can be presumed from the degree (how) and nature (why) of affixation
Trade fixtures  remain personalty (become chattels at lease end); leasehold improvements  fixtures, belong to landlord
Fixtures installed can be converted into chattels, if they repair damage.

Ratio: “Better use” test should also consider objective intention (duration of annexation & use of lands)

Occasional/temporary v permanent (permanent =item would remain as long as it serves its purpose – ex. carpets fixtures even though slight degree La Salle Recreations v Canadian Camdex

CMIC Mortgage Investment Corp v Rodriguez (2010)

Facts: D bought first Cover-All building, where concrete blocks were buried (fixture). Bought 2nd building, without paying for it, which rested on its own weight, intended to be portable. Bankrupt. CMIC wanted a declaration that 2nd building could be foreclosed (within mortgage on her land)

Decisions: For D2nd building a chattel.

Reasons:

Royal Bank of Canada v. Maple Ridge Farmers Market Ltd**DON’T USE

1.Chattel  Unattached, except by own weight, removed damage

2.Chattel  Plugged in, can be removed damage

3.Fixture  Attached minimally

4.Fixture  Attached to part of structure which could be removed, but rendered useless (lose essential character)

Chattel  Removed damage, without rendering useless (does not lose essential character)

5.Tenant’s fixtures can be removed

6.In exceptional circumstances, can resort to purpose test - If the item is unattached, but the party can establish that the intent was that it be a fixture, then it is a fixture

Ratio: 2nd building is unattached to property except by own weight (rule #1)  chattel; P wanted it portable (intent) so the presumption is not rebutted

Rebuttal presumption: degree of affixation, the size, value and nature of the object are factors in rebutting the presumption

Applied Re Davis, Stack v Eaton

WATER

RIPARIAN RIGHTS

-Littoral owner  ocean side/lake shore property owners

-Riparian owner  streams (any flowing body of water)

Stream = natural watercourse (lake, river, swamp, spring, creek)
Riparian rights = “natural” rights to use a lake/stream in its natural state, quantity and quality, entitled to make certain use of the water
Qualifications: no material injury to other riparian owners, no use unconnected to riparian property (domestic purposes), if not using for d.p.  cannot appropriate it for other uses, cannot transfer/sell riparian rights to others
Obligation not to harm other riparian owners in flow/quantity/quality of water
Maintains common law rights to flowing/clean water unless licence removes this right

-Water licences  first in time, first in right

-Crown owns:

All water, other than riparian uses (WSA s.5; WPA s.3(1) (2))
All land under water (Land Acts.55 s.56)
Unless Crown specifically gives stream-bed unless explicitly given on land grant (then ad medium filum)
Allgroundwater (WPA s.3(2))
All percolating water (WPAs.3(2))

-No one owns snow/rain while falling

-Current riparian rights: Natural rights continue, unless replaced by statute

1. Access to and from the water
2. Right of drainage
3. Right of reasonable use (WSAss. 2, 5, 6, 7; WPA s.3(1))
But you have permission
Crown owns
Must have licence for non-domestic purposes
4. Right to undiminished flow (volume) (WSAss. 2, 5, 6, 7; WPA s.3(1))
Crown owns flow, Crown owns use of groundwater
Right to flow for domestic uses
Unless licenced, as no right to complain about reduced flow (Johnson v Anderson)
5. Right to undiminished quality of water (contamination/pollution)
6. Right of accretion
gradual/imperceptible  property line changes
sudden/perceptible  if water rises, you lose land to the Crown
ONLY if property line is “wavy line” property (vs. fixed strip)
7. Right to protect land from erosion
if you are trying to protect your land from erosion, and this effects the land downstream that is alright
8. Right to flood-proof land

For domestic purposes: use of water of undiminished flow and quality for domestic purposes